Archive: Mar 2017

President Trump has taken a firm stance against illegal immigration, and some Californians worry what this will mean for the state’s economy and large population of undocumented immigrants. President Trump has already vowed to hire more than 10,000 new Immigration and Customs Enforcement officers, complete a border wall between the U.S. and Mexico, and restrict travel from certain countries.

The United States was founded and built by immigrants, and many California lawmakers have committed to opposing President Trump’s apparent hard-line stance against undocumented immigrants. California employers are notorious for ignoring immigration status during the hiring process, and Trump has promised to crack down on employers who hire undocumented immigrants instead of documented immigrants and American citizens.

Workers’ Compensation for Undocumented Immigrants

According to the Department of Homeland Security, more than 11 million undocumented immigrants reside in the United States. Under the Immigration and Nationality Act of 1965, it is illegal to offer employment to an undocumented immigrant, but many employers are able to cut operating costs by paying undocumented immigrants much lower wages than the industry standard. Many undocumented immigrants can only find work in low-paying and inherently risky jobs, such as farm labor and construction. When undocumented workers suffer injuries on the job, they are far less likely than other employees to report the injury due to fear of being fired.

If an employee does not have valid U.S. documentation or identification, there cannot be any official employment contract between the employee and employer. This means that if they are injured on the job, they will not be able to receive benefits under the law. Additionally, an employer who knowingly employs an undocumented immigrant may not be able to take advantage of certain protections afforded to most other employers.

Undocumented Immigration in California

California is perhaps the state most heavily affected by illegal immigration. California has a very large Latino community, and nearly 80% of the undocumented immigrants in the United States are Latino. Twenty-two percent of all Latino undocumented immigrants reside in California.

In 2014 alone, nearly 60% of all workplace injury victims and almost 40% of workplace death victims were Latino. That being said, California Latinos are less likely to file claims for workers’ compensation benefits compared with employees of another ethnicity. This may be due to the fact that many workers fear retaliation (such as being fired) for being injured on the job. Many suffer through their injuries, resulting in permanent damage or other serious conditions. Eventually, this takes a toll on the local economy when undocumented injured workers are forced to drop their employment because they are too injured to continue working and cannot receive treatment.

A great deal of the Californian economy depends on undocumented immigrants. Some may criticize this as an unethical dependency on illegal labor, but many Californians believe that helping undocumented immigrants find and keep employment is the right thing to do for the local economy. The president’s tough stance against illegal immigration may put the future of California’s economy at stake, especially since deportation raids and other activities are expected to ramp up in the coming months.

If you or a loved one has questions about deportation or American immigration policy, reach out to an experienced attorney. While a work injury attorney may be the best option for workers’ compensation claim issues, an immigration attorney may have more insight concerning an undocumented immigrant’s ability to secure workers’ compensation benefits.

Article 17-12

¡No Se Deje!

An undocumented immigrant filed a federal complaint against her employer for sexual harassment. In the complaint, filed with the Federal Equal Opportunity Commission (EEOC), she claimed that she was repeatedly subjected to sexual harassment by her supervisor. She also claimed that after she complained about the sexual harassment, her employer insisted that she prove her immigration status to them and that they ignored her harassment complaint. She was then summarily terminated from her job.

Attorneys at the Federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit in the Federal District Court against her employer, “The Restaurant Company/Perkins Restaurant”, for employment discrimination and sexual harassment. Attorneys for the restaurant argued that the employer is authorized and required to terminate someone that is undocumented and therefore not authorized to work. It also insisted that the victim’s immigration status is relevant and necessary to its case. The judge disagreed.

Federal Judge John R. Tunheim wrote in his official decision:

DISCOVERY REGARDING THE IMMIGRATION STATUS OF PLAINTIFFS (claimants) IN CIVIL RIGHTS CASES IS GENERALLY PROHIBITED…FIRST, THE IMMIGRATION STATUS IS USUALLY NOT RELEVANT TO THE ISSUE OF WHETHER THE EMPLOYER DISCRIMINATED, AND SECOND, PERMITTING EMPLOYERS TO USE THE DISCOVERY PROCESS TO INQUIRE INTO A WORKER’S IMMIGRATION STATUS WOULD HAVE AN UNACCEPTABLE CHILLING EFFECT ON THE BRINGING OF CIVIL RIGHTS ACTIONS, WHICH WOULD RESULT IN COUNTLESS ACTS OF ILLEGAL AND REPREHENSIBLE CONDUCT GOING UNREPORTED.

John Hendrickson, the EEOC attorney that represented the immigrant victim said “The attorneys for the restaurant decided that a good way to defend a sexual harassment case would be to go after the victim on immigration related issues. The EEOC challenged that with the obvious proposition that a victim’s immigration status does not tell anyone anything about whether the employer is permitting sexual harassment of its employees. We do not permit parties to attempt to intimidate and scare people away from our courts by the pursuit of potentially damaging but entirely unrelated, irrelevant and immaterial information.”

The judge added that the attorneys for the restaurant had not identified even one case where a federal judge had permitted an employer to inquire into the immigration status of claimants in similar cases. He also stated that to the contrary, federal courts that have decided similar cases have not permitted defendant employers to use the judicial discovery process to delve into the claimants’ immigration status.”

EEOC attorney Tina Burnside, who also worked on the case, said “It is no secret why defense attorneys decide to make a big issue out of the immigration status. They figure that there is a chance that they can put such fear into the hearts of the victims that they will walk away. This line of inquiry has nothing to do with the merits in employment discrimination cases. It is good that the courts are seeing through it and are not permitting it.”

Undocumented immigrants can feel more confident that the law will not permit their immigration status to allow guilty people to go unpunished. Always consult an attorney to consider the best way to protect and assert your rights. ¡NO SE DEJE! ®

Workers’ compensation exists to help injured workers cover their medical expenses and lost wages after suffering an illness or injury on the job. Many people do not realize that most states’ workers’ compensation laws also cover “cumulative” injuries that develop over time, such as herniated spinal discs from consistent bending and lifting, and carpal tunnel syndrome from repetitive typing. Illness from continuous exposure to harmful substances or environments may also lead to workers’ compensation claims.

When an injured employee files a workers’ compensation claim, he can typically expect to collect compensation for his immediate medical expenses and lost income due to his injuries. Depending on how the injury or illness came about, the injured worker may be able to secure additional compensation through a personal injury lawsuit, product liability claim, or another third-party claim.

The Reasoning Behind the Bill

Employers typically dread workers’ compensation claims because they often cause the premiums on their workers’ compensation insurance policies to increase. California Assemblyman Adam Gray (D-Merced) recently introduced Assembly Bill 221, which would greatly lower the burden placed on employers providing medical treatment to injured workers. This new bill has sparked controversy, because it will also make obtaining benefits for some cumulative injuries and occupational diseases much more difficult. If passed, the bill would take effect on January 1, 2018 and pertain to all workers’ compensation claims filed on or after that date.

The bill proposes several changes to the labor code stipulating acceptable claims and referral practices. The text of the bill states that employers would only have liability to pay for the treatment of cumulative injuries and occupational illnesses if certain criteria are satisfied. One of those criteria is that the employer must authorize the treatment. Other criteria include:

The employer must acknowledge the injury being treated.

The appeals board must find the treated injury compensable.

The injured employee has been evaluated by a qualified medical examiner and the examiner must conclude that the injured party’s employment caused (in whole or in part) the occupational illness or cumulative injury.

Workers’ compensation systems are strained by extraneous and fraudulent claims, and the state of California has passed various legislative measures to combat workers’ compensation and health care fraud. AB 221 takes aim at curbing extraneous claims and lightening the burden on employers, but it may make claiming workers’ compensation benefits much more difficult for injured employees.

What You Should Do

The proposed changes, while intended to encourage good faith practices in workers’ compensation cases, will make it much harder for injured employees to receive workers’ compensation benefits for injuries and illnesses that develop over time. These are typically the most difficult cases when it comes to workers’ compensation claims because the injured or ill parties must prove that their conditions definitively resulted from work.

An attorney can be a tremendous asset when navigating any type of workers’ compensation claim, especially in light of the recent developments in California state law. If AB 221 passes, many injured and sick workers could have difficulty receiving appropriate treatment.

Find a legal team with a proven track record of success in workers’ compensation cases to handle your claim. Cumulative injuries and occupational illnesses may be some of the most difficult conditions to prove resulted from on-the-job actions, but they typically take the largest toll on workers’ well-being. Protect your rights with strong legal representation.

In February, the California Department of Industrial Relations suspended seven medical providers from the California workers’ compensation system. The DIR was able to suspend these providers thanks to Assembly Bill 1244. This bill, which passed the California legislature in 2015, requires the Division of Workers’ Compensation administrative director to suspend any party convicted of fraud from participating in the California workers’ compensation system.

The Suspended Providers

All seven providers were convicted of workers’ compensation fraud or suspended from Medicaid or Medicare programs for medical fraud. In total, these providers filed more than 8,500 liens through the California workers’ compensation system. According to the CA DIR, these liens add up to a total claim value of more than $59 million. Here are the convicted providers:

Philip Sobol. This Los Angeles orthopedic surgeon had nearly 6,000 active workers’ compensation liens totaling more than $42 million. The U.S. District Court Central District of California in Santa Ana convicted Sobol for insurance mail fraud and other charges for receiving workers’ compensation kickbacks.

Boniface Okwudili Onubah. After a medical license revocation, the state of California barred this former Marina Del Rey neurologist from Medicaid and Medicare programs.

Jason Hui-Tek Yang. The Riverside County Superior Court convicted this Pasadena psychiatrist for an insurance fraud conspiracy, including unnecessary referrals for patients to justify billing the workers’ compensation system. Yang held more than 2,000 active workers’ compensation liens totaling more than $13 million.

Daniel Dahan. This former Long Beach chiropractor surrendered his license to practice after the CA DIR suspended him from participating in Medicare and Medicaid programs.

Alan Ivar. The U.S. District Court Central District of California in Santa Ana convicted this Costa Mesa chiropractor for participating in a referral scam with a Long Beach hospital. Ivar held more than 400 active workers’ compensation liens worth more than $2.5 million.

Thomas M. Heric. The U.S. District Court Eastern District of California in Sacramento convicted this Los Angeles physician for health care fraud and summarily suspended him from Medicare and Medicaid programs.

Carlos Arguello. The U.S. District Court Southern District of California in San Diego convicted this Chula Vista businessman for his role in a kickback scheme. Arguello was needlessly referring injured workers to a specific chiropractor.

Another three providers received notifications of pending suspensions and are appealing those actions. Once a provider receives a notification, he or she has 30 days from the issue date to file an appeal.

The Problem With Workers’ Compensation Fraud

Workers’ compensation exists to ensure the welfare of injured employees. While workers’ compensation benefits may not cover the total cost of a job-related illness or injury, they can provide much-needed financial relief from medical expenses and lost wages. Workers’ compensation provides funds to injured workers receiving care for their injuries, and the healthcare professionals who treat them.

When providers refer patients or provide unnecessary treatment, they can bill these services for their expenses. Some employers, such as Arguello above, receive kickbacks from the referrals they send to fraudulent healthcare providers. The provider will be able to bill a workers’ compensation service for the needless treatment, then pay the referrer a “finder’s fee.”

Workers’ compensation fraud is a serious issue, and the expense it places on state and federal programs makes it difficult to increase the amount of financial support available for truly injured workers. Assembly Bill 1244 has been generally well-received and has afforded California with another layer of protection against workers’ compensation and health care fraud. AB 1244 requires the DWC administrative director to suspend any practitioners, physicians, or other medical care providers from participation in workers’ compensation systems following a conviction for fraud. These new measures should inspire confidence in California’s workers’ compensation system and deter future fraudulent practices.

Article 17-09

¡No Se Deje!

PRESIDENT OBAMA’S IMMIGRATION POLICY IS QUITE DIFFERENT FROM DONALD TRUMP’S POLICY

The immigration laws of the United States provide several categories of people that can be lawfully admitted for permanent residence. Most of these categories are based on a qualifying familial relationship to a U. S. citizen or permanent resident or to unique employment skills with a qualified job offer. A lesser known and rarely used method of immigrating involves requests for political asylum.

Immigrants that apply for political asylum must prove that they have a “well founded fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group”. The few asylum applications that are approved are usually for people from countries that are considered to have “repressive governments” like Iran, North Korea or Cuba. That is why asylum applications for Mexicans are not usually granted. Doing so would necessarily imply that Mexico is a repressive country and would certainly complicate an already difficult relationship between the two countries.

The asylum application of a Mexican woman, referred only as “L. R.” provided the Obama administration the opportunity to establish a new policy for granting asylum for victims of extreme domestic violence. This particular asylum application was strongly opposed by the Bush administration. Bush administration lawyers argued that in spite of the extremely brutal nature of the violence and abuse inflicted on this asylum applicant, battered women cannot legally qualify for asylum period. They insist that crime victims are not included as a qualified group under the laws of political asylum.

After reviewing the case of L. R., senior lawyers for the Obama Administration issued a written statement which said “It is possible that the Mexican woman, and other applicants who have experienced domestic violence, could qualify for asylum”. This is a dramatic change in the policy of this country related to asylum claims. First, victims of domestic violence are now eligible and second, applicants from Mexico are now eligible. Even under the new policy, many conditions and requirements were included so that only a limited numbers of victims of domestic violence applying for asylum would qualify.

An immigration court filing stated that victims of domestic violence must prove that they are treated by their abusers as subordinates, little better than property and that domestic abuse is generally tolerated in their country. They must also demonstrate that they are not able to get protection from the government of their country and that simply moving to a different part of the country would not keep them safe.

President Obama’s vision and policies supporting immigrants is clearly different in every way to Donald Trump’s anti-immigrant executive orders. It is a shame that so many people now have to face a reality so different and cruel under Donald Trump.

While this change in policy is good news for Mexicans who usually do not qualify for political asylum, it is important to remember that it is limited to victims of violence and/or sexual abuse. And, because of the additional conditions, even many of these victims may not qualify. The publicity about possible asylum for Mexicans may once again cause unscrupulous people to deceive and defraud innocent victims by charging exorbitant fees with false promises of green cards for people they know do not qualify. ¡NO SE DEJE! ®

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